No, the president can’t ban gay marriage, abortion, or birth control. Can we move on now?

I received this question on tumblr yesterday.

And I realized, much to my dismay, that people really don’t understand this process. Here is my answer and I wanted to share it here as well, in the hopes that more people will understand this process.

And hopefully understand why this argument that “You shouldn’t vote for Romney or he will outright ban gay marriage, abortion, and birth control” is completely false, not just because he believes in state’s rights, but because that simply isn’t within his power.


Banning any of those things would be unconstitutional.

Now you may bring up DOMA here, but DOMA, while there is an argument about whether it is constitutional or not, was not a ban. DOMA basically meant that divorces and marriages did not have to be recognized across state lines, if a same-sex married couple moved from a state where their marriage was recognized to a state that did not have same-sex marriage.

So to ban something like that would take a constitutional amendment so that it wouldn’t be a unconstitutional. You following so far?

An amendment on one of those things would never happen. Here is why.

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.

The amendment on those topics would never be proposed by 2/3s of the House and Senate or by 2/3s of the states.

And even if one was proposed, it wouldn’t be passed because:

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).

(Link to actual full process explained)

Do you really think 38 states would agree to such an amendment? Not likely.




  1. Side note to something you said: DOMA is Constitutional because it neither bans marriage or tells a state what it can’t do…it merely says that states are free to choose whether or not to accept marriage licenses from other states which is a power given to Congress under Article IV

    “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

    The 2nd sentence makes it clear Congress has the right to determine the “the effect thereof” of a license from one state in another state.

    DOMA, is actually a good thing as it give time to build support for gay marriage one state at time rather than forcing it to a national level issue, which, as it stands right now, it would lose.

  2. “The president can’t ban gay marriage, abortion, or birth control.” The president can’t (constitutionally) ban gay marriage, abortion, or birth control. I agree. What is to stop him from taxing, discouraging or prohibiting (unconstitutionally) gay marriage, abortion, or birth control? Of course the same question applies to Mr. Obama. I would agree with the sentiment that the president can’t mandate, establish or subsidize gay marriage, abortion, or birth control (constitutionally). But we both know that for any given action to be (or not be) constitutional all you need is a majority vote of the US Supreme Court. I believe that the concept of constitutionality is a sentimental one given how few cases are decided by a unanimous vote of the court (I don’t have the stats on this one but I can live with being proved wrong).

    • Are you really trying to claim Republicans are going to use higher taxes to discourage something? We’re not big on taxes, for anything…and a president can’t raise taxes even if he wanted to unconstitutionally…only Congress can raise taxes…the IRS and any government agency would just ignore an executive order to create taxes that Congress did not authorize.

      “hat is to stop him from taxing, discouraging or prohibiting (unconstitutionally) gay marriage, abortion, or birth control?” Umm the fact that these are state issues and I think most states would just ignore any executive order to do so, and any federal agency that tried to enforce it would be slapped with a court injunction so fast they’d get whiplash.

      And as to the your suggestion that a conservative would appoint justices to the Supreme Court that would let their illegal orders pass…you forget, we’re talking about Conservative justices…they tend to place the Constitution and rule of law ahead of personal desires on issues…we’re not talking about liberals who just make shit up, conservatives actually hold to the Constitution…so it’s not really a valid worry that conservative justices would uphold illegal actions.

  3. Pingback: You’re an idiot if you think GOP will outlaw abortion (via The Conservative New Ager) « The Snark Who Hunts Back

  4. DOMA (sec 2) stated that the federal government could not recognize a states gay marriage. That the part no ones talking about any the part that was struck down. The fed can not discriminate, it was unconstitutional .

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